JUDGEMENT B. C. Chakrabarti, J. :- This is an application under Sec.482 of the Criminal P.C. for quashing an order dated 10-7-1980 passed by the learned Additional Sessions Judge, Alipore in Criminal Motion No.122 of 1980 revers-ing an order of discharge of the peti-tioners under Sec.239 of the Criminal P.C. 2. An information was lodged by one Dr. Noreen Minos alleging snatching away of gold neckchain from her per-son at about 9.15 p.m. on 4-10-1978 while she was returning home in the first floor of premises No. F 41, Garden Reach Road, Calcutta. On the basis of the said information, case No.231 dated 6-10-1978 was started. The two peti-tioners surrendered in court on 7-10-1978. The learned Magistrate by his order dated 12-5-1980 held that there was no prima facie case against the two accused persons; and accordingly they were discharged under Sec.239 of the Cr.P.C. 3. Being aggrieved, the complainant filed a revisional application which was disposed of by the order impugned in the present application. The learned Ses-sions Judge observed that the learned Magistrate had exceeded his jurisdiction in discharging the accused in so far as he has considered materials which were extraneous and could not be considered at that stage. The learned Additional Sessions Judge felt in view of the state-ment recorded u/s.161 Cr.P.C. that there was no reason to find that the charge was groundless. Accordingly the learned Additional Sessions Judge set aside the order of the learned Magis-trate and directed the learned Sub-divi-sional Judicial Magistrate to send the case to some other Magistrate for proceeding according to law. 4. The accused-petitioners have pre-ferred the present application against the said order. Mr. Banerji, learned Advocate appearing on behalf of the petitioners in the first place submits that the learned Magistrate did not take into consideration any materials which were extraneous and that in any event the prosecution is so highly improbable in view of the vagueness in the report made to the police and the delay in making it that there can be no point in permitting the prosecution to continue. 5. Heard Mr. Banerji for the peti-tioners as also Mr. Dutta who with the leave of the Court has appeared on be-half of the complainant though the com-plainant was not made a opposite party in this Rule. Heard also the learned Advocate for the State. 6. 5. Heard Mr. Banerji for the peti-tioners as also Mr. Dutta who with the leave of the Court has appeared on be-half of the complainant though the com-plainant was not made a opposite party in this Rule. Heard also the learned Advocate for the State. 6. Section 239 provides that if upon consideration of the police report and the documents sent with it under S.173 and making such examination, if any, of the accused as the Magistrate thinks necessary and after giving the prosecution and the accused an oppor-tunity of being heard, the Magistrate considers the charge against the accused to be groundless, he shall discharge the accused, and record his reasons for do-ing so. 7. The order of the learned Magis-trate indicates that in arriving at the conclusion he had not only referred to the statements under S.161 but also of the statements of Kalka Singh father of petitioner No.1 and the two accused persons as well. From the chalan sub-mitted by the police it appears that the prosecution did not really mention the statement of Kalka Singh if any, and it does not form part of the chalan so as to be considered as a document with-in the meaning of S.173 Cr.P.C. This apart, the order sheet of the learned Magistrate also does not indicate that after the appearance of the accused they were at any stage examined by the learned Magistrate. Therefore, the learned Magistrate was not justified in looking into the statement of the ac-cused if any, in the case diary although he might have considered any state-ment made by the accused upon ex-amination by him. Since he had not examined the accused, any statement made by accused were extraneous mate-rials which could not be considered for the purpose of S.239 Cr.P.C. 8. Mr. Banerji, however, argued that even if the learned Magistrate had ex-ceeded his limit in considering the mate-rials which he probably could not at that stage yet the materials in the case are such that no prosecution should be permitted to continue. He contended that the incident occurred according to the prosecution on the night of 4-10-1978 at about 9.15 p.m. but the F.I.R. was lodged on 6-10-1978 at about 8 hours. He contended that the incident occurred according to the prosecution on the night of 4-10-1978 at about 9.15 p.m. but the F.I.R. was lodged on 6-10-1978 at about 8 hours. In the F.I.R. the petitioner No.1 who is described as son of Kalka Singh is said to have snatched away a neck chain from the person of the com-plainant and the petitioner No.2 Tri-bhuwan Singh is said to have aided and abetted the petitioner No.1 in the com-mission of the offence. According to the prosecution the incident occurred at a time when there was power failure and while the complainant was return-ing to her flat in the first floor of the premises. Petitioner No.1 is the son of one Kalka Singh who is a co-tenant of the same premises. Petitioner No.2 also is a resident of the same address. It is true that in the letter written by the complainant the name of petitioner No.1 is not there but it is nevertheless stated that it was the son of Kalka Singh who pulled the golden chain from her neck and fled away being followed by his associate Tribhuwan Singh. In the statement of several witnesses ex-amined by the police under S.161 Cr.P.C. it appears that the complainant ran after the two miscreants with a torchlight in her hand, shouted after them and that on their enquiry she gave out that Kalka's son Sadhu being accompanied by Tribhuwan snatched away the golden chain. The witnesses of course stated that they could not identify the miscreants themselves but their evidence and statement clearly show that the complainant made dis-closure of the name of the petitioners to them at about the time of the oc-currence. It is true that in the letter written by her the name of the son of Kalka is not there but other particulars relevant for identification are there namely, that he was the son of Kalka Singh. Such being the position, we are unable to agree with the contention of Mr. Banerji that the case is so improbable that the charge against the two petitioners cannot be sustained. In sup-port of the contention Mr. Banerji re-lied on certain observations in the case of State of Karnataka v. Munni Swamy reported in AIR 1977 SC 1489 : (1977 Cri LJ 1125). Banerji that the case is so improbable that the charge against the two petitioners cannot be sustained. In sup-port of the contention Mr. Banerji re-lied on certain observations in the case of State of Karnataka v. Munni Swamy reported in AIR 1977 SC 1489 : (1977 Cri LJ 1125). There it has been observed that in a criminal case, the veiled ob-ject behind a lame prosecution, the very nature of the material on which the structure of the prosecution rests and the like would justify the High Court in quashing the proceedings in the in-terest of justice. The ends of justice are higher than the ends of mere law though justice has got to be administer-ed according to laws made by the legislature. In this decision reliance was also placed in the case of C.S. Manufacturing Co. v. State of Maharashtra reported in AIR 1972 SC 545 : (1972 Cri LJ 329). In this case it was held that it cannot be said that the court at the stage of framing charges is not to apply its judicial mind for consider-ing whether or not there is a ground for presuming the commission of the of-fence by the accused. 9. Upon a consideration of the deci-sions referred to and relied on by Mr. Banerji it seems that the real test for determining whether the charge should be considered groundless under S.239 Cr.P.C. is that where the materials are such that even if unrebutted make out no case whatsoever, the accused should be discharged under S.239 Cr.P.C. In the instant case it is difficult to say at this stage that the materials if unrebutted did not make out any case at all whether eventually they would succeed or not is, however, a dif-ferent consideration. 10. Such being our view of the matter we do not propose to interfere with the order impugned in the present applica-tion. Accordingly the application fails and is dismissed. The Rule is discharg-ed. 11. Let the records be sent down to the court below forthwith. JITENDRA NATH CHAUDHURI, J. :- I agree. Application dismissed.